P. v. Sullivan

Filed 1/30/07 P. v. Sullivan CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant was tried before a jury and convicted of selling cocaine base. (Health & Saf. Code,   11352, subd. (a).) He was sentenced to prison for the four-year upper term, doubled to eight years due to his admission of a prior serious felony conviction under the Three Strikes law. (Pen. Code,  1170.12, subd. (c)(1).) Appellant contends the judgment cannot stand because one of the jurors did not understand English well enough to comprehend the evidence or to properly deliberate. We agree and reverse.

BACKGROUND

The underlying facts of appellant's offense do not affect the issues raised in this appeal. Suffice it to say that appellant acted as a go-between in a controlled purchase of cocaine base by an undercover police officer.

Juror 9 was among those sworn to try the case and told the court at the outset of its voir dire of her, "I try to ask the question. I am not speak English." The court asked her a number of questions and ascertained that she spoke Spanish, had lived in the United States for 20 years and taught arts and crafts to Spanish-speaking children. She made several grammatical mistakes when answering the court's questions, and the prosecutor later noted that her English seemed to be "a little bit limited." Defense counsel made no comment and the court responded, "We spoke with her and she answered all the questions with accented English, but she responded appropriately." The prosecutor acquiesced to the court's remarks and neither side moved to excuse her for cause or utilized a peremptory challenge.

During deliberations, the foreperson of the jury sent a note to the court stating, "It has been brought to our attention that Juror [No.] 9 does not understand English well enough to determine what has been presented to come to any conclusion in this case. At this time she cannot make any decision. Is it possible to have a translation in Spanish?" Juror 9 was brought to the courtroom and questioned outside the presence of the other jurors:

"THE COURT: Welcome back, Juror 9. How are you doing this afternoon?

"JUROR 9: Fine.

"THE COURT: The reason I had you brought out is some of the jurors were just wondering about your English speaking ability. And I wanted to ask you--of course, when we talked earlier I know you had mentioned that you had concerns about your English speaking ability, but we talked to you and you responded to all my questions appropriately and you answered all of the questions on the board that I know are written in English. [] When the evidence was being presented in this courtroom--remember when the witnesses were testifying?

"JUROR 9: Uh-huh.

"THE COURT: Were you able to understand the witnesses when they were speaking?

"JUROR 9: No. No. No. Nothing--I am sorry, no, not that complete.

"THE COURT: Not completely?

"JUROR 9: No.

"THE COURT: But could you tell me whether you understood most of the testimony or half of the testimony? Could you give me--

"JUROR 9: No. No. No. It's hard. I understand all--I understand a little about words, no--I am sorry, my English.

"THE COURT: I mean you seem to understand what I am telling you right now and you have been able to answer questions that we have been asking right now. Was one officer easier to understand than another?

"JUROR 9: No.

"THE COURT: No? Your remember there were two police officers?

"JUROR 9: No, I don't understand too well.

"THE COURT: How many police officers to you remember testifying?

"JUROR 9: Two.

"THE COURT: Two. Okay. And do you remember what the other person who was testifying, what the other person testified about? There was a man that testified in the afternoon, yesterday afternoon.

"JUROR 9: The man or --

"THE COURT: The man who testified yesterday afternoon, do you remember that?

"JUROR 9: Yeah. Yeah.

"THE COURT: Do you remember what he was testifying about?

"JUROR 9: No.

"THE COURT: Did you understand what he was talking about?

"JUROR 9: No.

"THE COURT: When the police officers were testifying in the morning, could you understand any part of their testimony? Any part they were saying from the witness stand?

"JUROR 9: No, I don't understand nothing. No.

"THE COURT: Now is it that you were not listening carefully or is it that they were speaking too quickly or they were just using words you did not understand?

"JUROR 9: I am not understand--I understand no all the words--I am sorry.

"THE COURT: No, that is okay. We're just trying to figure out how much you understood. So if you can give me any type of an estimate as to how much you were able to understand as the officers were testifying?

"JUROR 9: I am sorry.

"THE COURT: I mean, could you understand where they said this took place?

"JUROR 9: Excuse me?

"THE COURT: Did you understand where this incident took place?

"JUROR 9: No.

"THE COURT: Did you understand what Mr. Sullivan is being charged with?

"JUROR 9: I understand a little. That part I understand.

"THE COURT: What do you understand Mr. Sullivan is being charged with?

"JUROR 9: He's tried to sell cocaine--coca--I don't know.

"THE COURT: And what did you understand the witnesses yesterday testifying about? Remember we had a police officer come on the stand and testify first thing. Do you have any understanding as to what he was testifying about?

"JUROR 9: No. No. I can't explain. I don't know the words for say.

"THE COURT: You may have difficulty explaining it right now, but as you were listening to it did you understand it?

"JUROR 9: Yeah.

"THE COURT: So you understood what he was talking about. You were having difficulty explaining it now; is that right.

"JUROR 9: Yes.

"THE COURT: But as the officer was testifying, you understood what he was talking about?

"JUROR 9: Yes.

"THE COURT: Okay. And so your problem isn't really understanding the officer, it's more explaining and talking with the other jurors.

"JUROR 9: Yes.

"THE COURT: Okay. So you understood what the officer was saying in terms of what was happening?

"JUROR 9: Not complete.

"THE COURT: Not complete. But you had a pretty good understanding of at least what was going on.

"JUROR 9: Yeah.

"THE COURT: Your problem is really discussing with other jurors; is that right?

"JUROR 9: Yes.

"THE COURT: Now is there any portion of the testimony that would help you if you had that read back to you so you could understand things a little bit better?

"JUROR 9: Excuse me? I don't--

"THE COURT: If the court reporter were to read back to you any part of the testimony, would that help you at all in understanding what was said in testimony?

"JUROR 9: I don't --

"THE COURT: Let me try this again, Ma'am. [] You told us that you understood most of what was said from the testimony; is that right?

"JUROR 9: Yes.

"THE COURT: Those things that you didn't understand, would it help if the court reporter read back to you any part of the testimony.

"JUROR 9: Yeah.

"THE COURT: That would help?

"JUROR 9: Yeah.

"THE COURT: And that would fill in whatever part you didn't understand?

"JUROR 9: Yeah.

"THE COURT: And then you would be able to discuss the matter slowly with the other jurors?

"JUROR 9: Okay.

"THE COURT: You could do that?

"JUROR 9: Yeah.

"THE COURT: Thank you."

Outside the hearing of Juror 9, the court informed the attorneys that in its view, she had a "decent" level of English and the problem was more her ability to communicate with the other jurors than her ability to understand the evidence. It indicated that deliberations would continue and Juror 9 could request a readback of testimony if necessary. Defense counsel stated that the court had addressed the issue appropriately.

The court called the other jurors into the courtroom and advised the entire jury that in its view, Juror 9 had a good understanding of English. It encouraged them to be patient in deliberations and informed them that a readback could be requested if there was a concern about what was actually said in the court. The jury returned to deliberations and returned a guilty verdict in less than 20 minutes. No readback of testimony was requested.

The defense filed a motion for new trial based on juror misconduct and incapacity. Attached as an exhibit was a report from a public defender investigator who had interviewed three of the jurors. Juror 1 reported that Juror 9 understood English and that no one had tried to influence her vote. A Spanish interpreter was not needed because other jurors had explained the information that Juror 9 needed clarified. Juror 10 reported that Juror 9 understood more English than she communicated, but had not understood the technical portion of the testimony by a lab technician who opined that the substance sold was cocaine base. When she returned to deliberations after speaking to the judge about the jury note, she was assisted by a Spanish speaking juror for in-depth explanations. Juror 12 indicated that Juror 9 had said one of the officers was speaking too quickly about the "technical stuff." After Juror 9 returned from speaking with the court, Juror 12 assisted her by explaining certain basic aspects of the case.

The court noted that no affidavits had been filed by the jurors the investigator interviewed, but it was assuming they would testify as reported if a hearing were held on the alleged misconduct. The court denied the motion for new trial because the declarations revealed that Juror 9 had participated in deliberations and any "error" in having other jurors translate was de minimis.

DISCUSSION

Appellant argues that Juror 9's level of English rendered her incapable of understanding the evidence and participating fully in deliberations. He contends the trial court erred at three junctures: when it failed to excuse Juror 9 for cause after she expressed some doubt about her English abilities during voir dire; when it failed to excuse her and declare a mistrial after questioning her in response to the note sent during deliberations; and when it denied the motion for a new trial. We agree that reversal is required.

Penal Code section 1089 provides, in pertinent part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty, or if a juror requests a discharge and good cause appears therefore, the court may order him to be discharged . . . ." "Insufficient command of the English language to allow full understanding of the words employed in instructions and full participation in deliberations clearly would render a juror 'unable to perform his duty' within the meaning of Penal Code section 1089." (People v. Elam (2001) 91 Cal.App.4th 298, 316.) A language deficit requiring discharge of a juror must appear in the record as a demonstrable reality, and the decision to discharge or retain the juror is reviewed for abuse of discretion. (People v. Szymanski (2003) 109 Cal.App.4th 1126, 1131.)

Juror 9 stated at the outset of questioning during voir dire that "I am not speak English." But she was able to answer the questions posed by the court about her history in the country, the area where she lived and the details of her employment. This exchange was not enough to show, as a demonstrable reality, that Juror 9 was unable to understand English well enough to participate. Appellant has forfeited any claim that further voir dire about Juror 9's language skills was required because defense counsel did not ask the court to make such an inquiry, did not ask that Juror 9 be excused for cause, and did not exercise a peremptory challenge to excuse her from jury service. (See People v. Kipp (1998) 18 Cal.4th 349, 365.)

Although the record is insufficient to show that Juror 9 should have been excused during voir dire, a material change occurred after the jury sent a note during deliberations to inform the court that she did not understand English well enough to reach a verdict in the case. During the court's examination of her on this subject, Juror 9 repeatedly stated that she had not understood portions of the trial testimony. Eventually she acknowledged that she had a "pretty good" understanding of what was going on during the trial, but this was only after a series of highly suggestive questions by the court. The court advised her that she could ask for a readback if necessary and sent her back to deliberate. A verdict was reached soon after though no readback was requested.

It was an abuse of discretion for the trial court to retain Juror 9 on the jury given her repeated statements that she had not understood the evidence and her previous comment to the court during voir dire that she did not speak English. The court's characterization of Juror 9 as someone who spoke with accented English minimizes her stated difficulty in understanding the evidence and communicating with the other jurors during deliberations. Perfect grammar when speaking is not essential to a juror's performance, but the ability to understand the evidence and communicate during deliberations is essential. On the basis of this record, we lack confidence that Juror 9 was able to understand significant aspects of the issues presented.

In People v. Szymanski, supra, 109 Cal.App.4th at p. 1129, a juror indicated during voir dire that her primary language was Chinese and stated, "I think everything is okay with me except my English. Some of the words I cannot catch because I come from China. And there are some English words that I don't understand." The juror was questioned further and indicated that she spoke both Chinese and English in her job, which involved purchasing goods in China. She did not understand certain terms used in voir dire, such as "law enforcement." (Id. at p. 1129-1130.) The defendant's convictions were reversed because the trial court denied a motion to remove the juror for cause. The appellate court concluded this was an abuse of discretion where the juror had candidly admitted a lack of comprehension. (Id. at p. 1132.) The juror's responses in Szymanski were similar to those of Juror 9 and we similarly find an abuse of discretion in retaining Juror 9 on the jury after she was questioned during deliberations.^[1]

Even if we were to conclude that it was appropriate to send Juror 9 back into deliberations with the admonition that she should request a readback of whatever testimony she had not understood, the court erred when it denied appellant's motion for a mistrial on the grounds of juror misconduct. A new trial should be granted "[w]hen the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of the jurors." (Pen. Code,  1181, subd. 4.) Although the investigator's report submitted in support of the motion was inadmissible hearsay that was insufficient to impeach the verdict (see Evid. Code,  1150), the record as a whole as of the time of the motion demonstrates that appellant's Sixth Amendment rights were violated and that a new trial was required.

If the jury had requested a readback after Juror 9 returned to deliberations, we might be able to infer that the gaps in her understanding had been filled by rehearing the testimony. But there was no readback. The only conclusion to be reached from this is that Juror 9 either voted to convict despite not understanding some of the testimony, or that the information she was missing was provided by the other jurors. The former situation would violate appellant's due process right to be tried by a fair and competent tribunal. (See Jordan v. Com of Massachusetts (1912) 225 U.S. 167, 176; People v. Jenkins (2000) 22 Cal.4th 900, 988.) The latter situation would be equally problematic because it would mean the other jurors were effectively acting as translators or witnesses. (See People v. Cabrera (1991) 230 Cal.App.3d 300, 302-304 [error for Spanish-speaking juror to give own translation of witness's testimony in Spanish; by analogy, it would be error for English-speaking juror to interpret witness's English testimony for Spanish-speaking juror].)

There is some confusion about the appropriate standard of review for the denial of a motion for new trial based on juror misconduct. In People v. Nesler (1997) 16 Cal.4th 561, 582, the court stated, "Whether prejudice arose from juror misconduct . . . is a mixed question of law and fact subject to an appellate court's independent determination." In People v. Williams (1988) 45 Cal.3d 1268, 1318, the standard applied was abuse of discretion. Under either standard, reversal is required where it is clear from the record that Juror 9 could not, under the circumstances, have rendered a fair and impartial opinion based on her own determination of the evidence.

In reversing this judgment, we do not suggest that only those individuals whose primary language is English will be competent to serve as jurors. Many people speak English with great fluency, despite it being their second, third or even fourth language. Nor do we suggest that a heavy accent or imperfect grammar would necessarily prevent a juror from effectively communicating with fellow jurors during deliberations. Trial courts must be sensitive to the diverse backgrounds of the citizens who are called to serve on juries, and should only excuse a juror based on deficient English skills when it appears that juror will be unable to understand the evidence or effectively deliberate. Juror 9 candidly and commendably admitted that she had not understood some of the testimony and was having difficulties deliberating due to her limited English skills. This violated appellant's right to a verdict by 12 jurors who heard the evidence presented.

The judgment is reversed.

NOT TO BE PUBLISHED.

COFFEE, J.

I concur:

GILBERT, P.J.

I respectfully dissent.

If appellant did not want Juror 9 to hear and decide his case, he should have objected before verdict. He did not do so and is estopped from successfully complaining that a juror he agreed to hear the case should have been excused. The majority opinion reweighs fact-finding determinations made by the trial court and substitutes itself as the trial court when it "finds" that juror 9

". . . did not understand English well enough to comprehend the evidence or properly deliberate." This is, literally, unprecedented.

Jurors are not required to speak with the discrimination of an Oxford don or understand every nuance of the English language. (See e.g., People v. Elam (2001) 91 Cal.App.4th 298, 316-317.) The trial court found that Juror 9 had "a pretty good understanding of the English language and has a good understanding of the testimony. It's really more of a concern of being able to communicate [her] thoughts in terms of the deliberation process." The jury was ordered to continue deliberations and advised that Juror 9 could request a readback of testimony if necessary.

Appellant did not object or request that the trial court inquire further about the juror's competency. Defense counsel stated that the trial court "has addressed it appropriately by doing read back. If there are further concerns, that [can] be addressed to the court by the jury again."

Appellant implicitly agreed that Juror 9 was competent and, as a matter of trial tactics, wanted the jury to resume deliberations. Having gambled and lost, he is estopped from arguing that he was denied a fair trial by 12 competent jurors. (See People v. Hill (1992) 3 Cal.4th 959, 985 [objection to juror competency, made after trial, waived], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Appellant cannot

"sit back and acquiesce in the procedure used, await a jury verdict, and then assert error . . . ." (People v. Rhoades (2001) 93 Cal.App.4th 1122, 1126.) To hold otherwise would be to declare "open season" on jury verdicts not to a defendant's liking. In People v. Andrade (2000) 79 Cal.App.4th 651, 661, this very division said: "We do not declare 'open season' for a shift in trial tactics that would allow a defendant to remain silent at trial and gamble on a favorable verdict, knowning that he or she will get new a trial . . . ."

It is settled that trial court determinations as to a juror's competency are entitled to deference on appeal. (See e.g., People v. Bolden (2002) 29 Cal.4th 515, 537; People v. Ervin (2000) 22 Cal.4th 48, 69.) "The decision whether to investigate the possibility of jury bias, incompetence, or misconduct - like the ultimate decision to retain or discharge a juror - rests within the sound discretion of the trial court. [Citation.]" (People v. Ray (1996) 13 Cal.4th 313, 343.) A juror's inability to perform his or her functions as a juror must be established as a

" 'demonstrable reality' " and will not be presumed. (People v. Cleveland (2001) 25 Cal.4th 466, 474.)

The trial court's finding that Juror 9 was competent and able to deliberate is supported by the record which includes an extensive pretrial voir dire, examination of Juror 9 before the jury resumed deliberations, and a report by appellant's own investigator. Missing here is demonstrable evidence that Juror 9 did not understand the charges, the instructions, or the evidence. "[I]t is immaterial that [Juror 9] had a pronounced accent, [her] English was not the best and juror communication was not quick and easy." (People v. Elam, supra, 91 Cal.App.4th at p. 316.)

The majority opinion recites that Juror 9 was unfit because the jury did not request a readback after resuming deliberations. The record, however, indicates that the problem was Juror's 9's ability to express her thoughts during deliberations, not her understanding of the evidence or the jury instructions. Not asking for a read-back does not reflect poorly on Juror 9. It may just as well show that she was able to discharge her duties with the help of fellow jurors. This is the inference drawn by the trial court but rejected by the majority opinion.

Appellant's motion for new trial included a report from a investigator in which fellow jurors stated that Juror 9 understood English but had a problem expressing herself, that Juror 9 "did participate in the panel discussions," that Juror 9 was "'kind of quiet'" and did not talk much during deliberations, that the jury had to "go back" to confirm Juror 9's understanding of particular issues, that Juror 9 was not manipulated into voting guilty, and that no one attempted to influence the juror's vote.^[2]

The juror conduct described in the investigator's report could apply to any juror who is shy or speaks English as a second language. The trial court ordered the jury to resume deliberations and instructed the jury "to consider the opinions of all jurors and be patient with those whose English may be a little bit accented . . . . [A]fter all we have a governor whose English is sometimes hard to understand, but it doesn't mean that he doesn't necessarily understand what is going on."

The majority opinion recites that perfect grammar when speaking is not essential to a juror's performance but concludes that "we lack confidence that Juror 9 was able to understand significant aspects of the issues presented." That conclusion is contrary to the findings of the trial court who examined and observed Juror 9 during jury voir dire and made an extensive inquiry before the jury resumed deliberations. To conclude that the trial court abused its discretion or that there was error based on juror incompetency/misconduct flies in the face of the record.

The majority opinion puts a premium on gambling on the jury verdict and is contrary to the spirit, if not the letter of California Supreme Court precedent. (E.g. People v. Rogers (1978) 21 Cal.3d 542, 548.) Appellant's tactical decision not to object to Juror 9 before verdict gave him the bite at the apple that he wanted. The majority opinion now gives him an unprecedented second bite.

I would affirm the judgment.

NOT FOR PUBLICATION.

YEGAN, J.

Mark V. Mooney, Judge

Superior Court County of Los Angeles

______________________________

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Herbert S. Tetef, Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1]Although defense counsel acquiesced in the court's decision to send Juror 9 back to deliberate, we do not conclude the claim has been forfeited. Objections are generally required to preserve an issue for appeal because a party should not be permitted to remain silent when the court could have ruled on the matter and cured the problem. Here, an objection could not have cured the problem because there was no alternate juror remaining in the event Juror 9 was removed from the jury. The court's only option would have been the declaration of a mistrial leading to a retrial of the charges, the same essential outcome as a reversal on appeal. (Contrast People v. Holloway (2004) 33 Cal.4th 96, 124.) The People do not contend this issue has been forfeited due to defense counsel's failure to request the removal of Juror 9.

^[2]The majority conclude that the investigator's report is inadmissible hearsay (Evid. Code,  1150) even though the issue was waived for purposes of appeal. The trial court found that the investigator's reports "are actually not even declarations. . . . And so for purposes of this hearing, I am going to assume that were these witnesses to come in and testify they would testify consist with what is set forth in the investigator's report. []  And basically they do set forth, when you take them as a whole, that [Juror 9] did understand English. She participated. She spoke with all of the jurors. Deliberated."